Opinion of the Court, per HUNT, J.

tioned, the party should be admitted to testify in his own behalf. To accomplish this, it was quite important to state that the enactment was released from the provision of section eight.

The judgment of the Oyer and Terminer of Rensselaer is right and should be affirmed.

Judgment affirmed.

CITY OF UTICA v. CHURCHILL et al. p. 161

NOTE. The judgment in this case was unanimously reversed by the Supreme Court of the United States, on the ground that the New York statute authorized a tax upon the shares of stockholders in national banks at a greater rate than upon shares in State banks.

A majority of the court further held that it was competent for the State to tax shares in national banks, although the capital stock was invested in government securities, the opinion being delivered by NELSON, J.

A minority opinion dissented from this proposition and was delivered by Chief Justice CHASE, Justices WAYNE and SWAYNE concurring.

INDEX.

ACCORD AND SATISFACTION.

Where the wife joins with her husband in executing a mortgage to secure the payment of the reduced amount which the creditor agreed to accept in payment of the original demand, the pledge of her inchoate right of dower for such payment is sufficient to convert the transaction to an accord and satisfaction, by which the original claim is extinguished.

Where money is due by the condition of a bond, and the defendant has a right to discharge it by bringing the principal and interest into court, an accord and satisfaction by parol may be set up against it. Keeler v. Salisbury, 648.

ACTION.

To recover back money paid on an award obtained by fraud. See AWARD, 9.

AGENT.

COMMON CARRIER. A carrier, in forwarding goods beyond the terminus of his own route, is bound by the instructions of the owner. Johnson v. New York C. R. R. Co., 610.

It is his right and his duty, in an unforeseen exigency, when the safety of the goods requires it, and the consent of the owner may fairly be presumed, to deviate from the letter of his instructions and notify him of such deviation; but when the deviation is unnecessary, and for the mere convenience of the carrier, he assumes the risk of consequent injury, and remains responsible as an insurer. Id.

THE PRIMARY DUTY OF AN AGENT is to observe the instructions of his principal; and when he disregards them, he voluntarily assumes a responsibility by which he must be content to abide.

LIABILITY OF RAILROAD COMPANY for the negligence of one in their employ, &c. See Chapman v. New York C. R. R. Co., 369.

RATIFYING UNLAWFUL ACT BY, ETC. To ratify an unauthorized act performed by an agent, it is sufficient if the principal, with knowledge of what has been done by the agent, consents to be bound by it, and unequivocally manifests. such intent to the other party. Keeler v. Salisbury, 648.

It seems, a promise to pay a smaller sum than that which is due, to extinguish an existing debt, does not operate as an extinguishment of the same, even where the promise is reinforced by additional security from the debtor's own means. Id.

But where such promise is reinforced by the procurement of a third person to become surety for him by engaging his personal credit or pledging his property for the payment of the sum agreed, &c., it is a compromise operating by way of accord and satisfaction to extinguish the original debt. Id. See HUSBAND AND WIFE, 518; LESSEE, 251.

AGREEMENT.

WHEN AMOUNTING TO PAYMENT. See PAYMENT, 69.

APPEAL.

GENERAL EXCEPTIONS. See PRACTICE, 83.

GENERAL TERM JURISDICTION. The General Term of the Supreme Court have
jurisdiction of an appeal to the chancellor from the decision of a vice chan-
cellor, declaring the rights of the complainants, and referring the matters to
a master for the proper accounting, which appeal was pending at the time
the Court of Chancery was abolished by the Constitution, &c., in 1846.
Green v. Givan, 343.

COURT OF APPEALS. Where the General Term orders a new trial, both upon the
law and the facts, that opens the question for the consideration of this
court, whether the General Term was right in holding that the court at
circuit erred on questions of fact. Beebe v. Mead, 587.

FAILING TO PROSECUTE, ETC. DISMISSED, 296.

DISCRETIONARY ORDER WHEN APPEALABLE. See Bank of Geneva v. Reynolds, 160.

APPOINTMENT.

POWER OF. A person entitled, under a power of appointment, to dispose of
property by deed or will, may make such disposition by a proper instrument,
without inserting in it a reference to the power, if it otherwise appear that
the intention was to execute the power. White v. Hicks, 383.

But where the disposition was by will held, that a parol declaration, by the tes-
tator, of an intention to execute the power, was not competent evidence of
such intention. Id.

It is, however, competent for the court to compare the dispositions of the will
with the testator's own property, and to deduce therefrom an intention to
embrace in his testamentary gifts the subject he was entitled by the power
to dispose of. Id.

Accordingly, where a married woman had power, under the will of her father,
to dispose by will of the principal of a sum of $50,000, the interest of which
was given to her for life, to her husband or otherwise, and she made her
will, without referring to the power, by which she bequeathed to her
husband $50,000, and to other legatees pecuniary legacies amounting to
$32,000, and a general residue, and it appeared that her own property
amounted to only $54,000, and that she well knew the amount of her
estate, and executed the will when she knew herself to be in extremis; held,
that the power to dispose of the $50,000 was validly executed by the gift
of $50,000 to her husband.

The English cases, decided since the American revolution, by which it was
established that the amount of the testator's property could not be inquired
into to show an intention to execute a power of appointment, are not to be
followed in this State, especially as the rule has been disapproved of by
English judges, and has recently been abrogated by act of parliament. Id.

ASSIGNMENT.

BY MANUFACTURING CORPORATIONS WHEN VOID. Sibell v. Remsen, 95.

AUTHORITY.

Of either house of the legislature to recall a bill sent to the governor for his
approval. See LEGISLATURE, 269.

OF MUNICIPAL CORPORATIONS, IMPLIED. A corporation is not limited to the exer-
cise of the powers specifically granted, but possesses, in addition, all such
powers as are either necessarily incident to those specified, or essential to
the purposes and objects of its corporate existence. Le Couteulx v. City of
Buffalo, 334.

AUTHORITY —Continued.

The common council of the city of Buffalo have full and ample power to take
and hold any property transferred to them for the use of common schools
in said city. Id.

By the term "common schools," is to be understood such schools as are common
or open to all, in a certain locality. Per DAVIES, J. Id.

Prior to 1851, the defendant had power, under the laws of the State, to estab-
lish and maintain free schools within its limits, and could legally take and
hold real estate for such purpose. Id.

ONCE EXERCISED, ETC., EXHAUSTED. The common council of the city of Albany,
having once legally canvassed the votes returned for the election of mayor
of said city, have exhausted their power over that subject, and cannot after-
wards reverse their decision by making a different determination, Hadley
v. Mayor of Albany, 603.

Where the law has committed to the common council the duty of canvassing
the returns, and determining the result of an election from them, and the
council have performed that duty and made their determination, the question
as to the effect of the returns made is not open for determination by a jury
in an action in which the title of the officer to his office comes up collater-
ally. Id.

COMMON COUNCIL OF NEW YORK to impose a penalty upon railroad company
for not paying a license fee, &c. See MUNICIPAL CORPORATIONS, 42.

AWARD.

MAY BE IMPEACHED FOR FRAUD, WHEN. An award by a board of State auditors,
obtained on an ex parte hearing, upon a fictitious and groundless claim,
may be impeached for fraud and imposition on the part of the claimant.
MONEY PAID UNDER, MAY BE RECOVERED BACK. Money paid under such an award
may be recovered back on establishing the fraud, but only to the extent
that the State was damnified by the wrong. State of Michigan v. Phœnix
Bank, 9.

BAILEE.

INNKEEPER AS BAILEE. The liability of an innkeeper as an insurer, presupposes
the relation of host and guest. Ingallsbee v. Wood, 577.

He is not responsible, except as an ordinary bailee for hire, for the safe-keeping
of a horse left at the inn stable for the night, by one who is neither a
lodger nor a guest. Id.

Held, that in such a case, the innkeeper was not liable for the loss of the horse
by a fire which consumed the stable, the proprietor being free from negli
gence.

The case of Mason v. Thompson (9 Pick., 280), disapproved. Id.

BILLS OF EXCHANGE, &c.

POSSESSION OF, PRIMA FACIE PROOF OF OWNERSHIP. The possession of a promis-
sory note by the plaintiff, indorsed in blank by the payee thereof, is prima
facie proof of ownership, and sufficient, in the absence of other evidence,
to entitle the holder to recover on proving the indorsement, &c. Bedell v.
Carll, 581.

The allegation in the complaint, that the holder acquired title thereto by gift
from the payee, is unnecessary; and being alleged, need not be proved. Id.

It seems, the promissory note of a third party is the subject matter of a gift
inter vivos; and the delivery thereof into the immediate possession of the
donee is sufficient to uphold such gift. Id.